Citation Nr: 21013311 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-18 414 DATE: March 9, 2021 ORDER An effective date of November 29, 2011, for the award of service connection for an acquired psychiatric disability, to include a mood disorder and posttraumatic stress disorder (PTSD), is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The award of service connection for the Veteran’s psychiatric disability stems from an original claim filed on November 29, 2011. 2. Resolving reasonable doubt in favor of the Veteran, evidence of record indicates that his psychiatric disability dates back to at least the date his claim was filed. CONCLUSION OF LAW The criteria are met for an effective date of November 29, 2011, but no earlier, for the award of service connection for an acquired psychiatric disability, to include a mood disorder and PTSD. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1970 to March 1972. In December 2020, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). The Board has recharacterized the issue on appeal as above to reflect better the Veteran’s contentions. Entitlement to an effective date earlier than May 29, 2015, for the award of service connection for an acquired psychiatric disability, to include a mood disorder and PTSD The Veteran seeks an effective date earlier than May 29, 2015, for the award of service connection for his acquired psychiatric disability. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). If a veteran filed a claim for benefits before the disability manifested, the effective date cannot be earlier than the date the disability eventually manifested, i.e., the date entitlement arose. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. On November 29, 2011, the Veteran filed a claim for service connection for PTSD. In this regard, the Board notes that, when a claimant files a claim for VA benefits, he seeks service connection for symptoms, regardless of how such symptomatology is diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, the Board finds that his claim was for service connection for his psychiatric symptoms, whatever that diagnosis may have been. The Veteran underwent a VA PTSD examination in December 2012. At that time, the examiner concluded that the Veteran did not meet the criteria for PTSD pursuant to DSM 4, but diagnosed a mood disorder, not otherwise specified. The examiner opined that the Veteran’s psychiatric symptoms were related to his reports of in-service harassment, but ultimately opined against service connection because she could not find information in the claims file which corroborated his harassment reports. The Board notes that the examiner was not tasked with the role of fact finding, and went beyond the scope of her role in making a factual determination, in which she did not consider that the Veteran, as a lay person, was competent to report what he has personally perceived through his senses, such as having been a victim of in-service harassment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In light of the 2012 VA examiner’s negative nexus opinion for his mood disorder and her finding that he did not meet the criteria for PTSD, the RO denied service connection for the Veteran’s psychiatric claim in a July 2013 rating decision. The Veteran timely appealed this decision, noting that private records existed supporting his diagnosis. The records were obtained, and the Veteran was afforded a second VA PTSD examination in May 2015, at which time an examiner found that the Veteran met the DSM 5 criteria for PTSD stemming from his reported in service stressors. Service connection for PTSD was then granted in a June 2015 rating decision, and an effective date of May 29, 2015 (the date of the VA examination at which PTSD was diagnosed) was assigned. The RO had determined that that date represented the earliest evidence of a diagnosis of PTSD that met the DSM criteria. There are no communications from the Veteran prior to November 29, 2011, which could be construed as a claim for service connection for a psychiatric disability, nor has he asserted such. Thus, this claim arises from an original grant of service connection filed in November 2011, over a year after the Veteran’s 1972 separation from active service. In that respect, the earliest date possible for the award of service connection for the Veteran’s psychiatric disability is November 29, 2011, the date he filed his claim for service connection for his psychiatric symptoms. As such, entitlement to an effective date earlier than May 29, 2015, will depend on whether the evidence shows that the Veteran’s entitlement to service connection for a psychiatric disability arose prior to that time. In this case, it clearly does. Because the Veteran’s claim for service connection was for his psychiatric symptoms, the evidence is clear that he had a diagnosable acquired psychiatric disability at the time of the 2012 VA examination. The Board recognizes that the December 2012 VA examiner opined against service connection for the Veteran’s diagnosed mood disorder. However, while the Board cannot ignore or disregard the VA examiner’s medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the 2012 VA examiner’s rationale focused on the lack of corroborating evidence for the Veteran’s reported in-service event to which the examiner found his mood disorder was related. Although the law generally requires a verified stressor for service connection for PTSD, the Veteran’s competent statements regarding the harassment he endured in service were essentially ignored by the examiner in declining to conclude that service connection was warranted for a psychiatric condition other than PTSD. Also, as previously discussed, fact-finding determinations are to be made by VA adjudicators, not medical examiners. Thus, as the examiner did not consider the Veteran’s probative factual assertions, the Board affords little probative weight to her opinion as far as she asserted that a connection could not be made between his psychiatric symptoms and in-service events without corroborating information. However, as to the part of her opinion where she diagnosed the Veteran with an acquired psychiatric disability that met the DSM criteria and where she stated that his psychiatric symptoms were related to his experiences of harassment in service, the Board affords high probative value. In light of the above, the competent evidence of record supports a finding that the Veteran had a diagnosable acquired psychiatric disability that met the DSM criteria at the time he filed his claim for service connection for the same psychiatric symptoms. Thus, the Board finds that the criteria for an effective date of November 29, 2011, but no earlier, have been met for the grant of service connection for the Veteran’s acquired psychiatric disability, to include a mood disorder and PTSD. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.